Arbitral procedure

The Decree of the Moscow District FAS (case of 17.10.2011, № A 41-14106/10) noted that the counterparty to the transaction that gave the procedure of Art. 93 of the Tax Code testimony of non-participation in the organization and not signing them original documents, is not proof of receipt by the taxpayer unjustified tax benefit. The tax authority has to prove the absence of real economic transactions with this counterparty, reflecting this in the decision to call the taxpayer to liability. In the absence of evidence is not making business transactions in connection with which the claimed right to a tax deduction or a reduction in taxable income, the conclusion that the taxpayer knew or should have known about the unreliability (inconsistency) of information can be made by the court in the evaluation of the circumstances set associated with the conclusion and execution of the contract (including the grounds on which the taxpayer was selected corresponding to the counterparty), and the other circumstances set forth in the Decree of the Plenum of the RF of 12.10.2006, № 53 «On arbitration courts assessing the validity of obtaining a taxpayer tax benefits. »

The Decree of the Moscow District FAS (case of 14.10.2011, № A40-2532/11-75-12) noted that by virtue of Section 7, Art. 78 Tax Code, a statement of credit or refund of overpaid tax may be filed within three years from the date of payment of that amount. Thus, this norm of the Tax Code does not prevent a citizen (and any other person) in case of missing three-year period of application to the tax authorities to apply to the court for the return of budget overpayment through civil or arbitration proceedings, in which case the general rules of calculation statute of limitations - the day when the person knew or should have known of the violation of his right (of the Constitutional Court of Russian Federation of 21.06.2001 № 173-O). In that case, if the taxpayer became aware of an existing overpayment only from the act of checking the calculations, said the return of overpaid amounts to the tax authority and was denied, the taxpayer may apply to court for refund or offset such amounts (paragraph 22 of Resolution Plenum RF from 28.02.2001 № 5), because the statute of limitations in this case is terminated.

The Decree of the Moscow District FAS (case of 13.09.2011, № A40-118755/09-108-879) noted that the procedure for recognizing expenses for accrual provided that the costs to be taken for tax purposes shall be established in the reporting (tax period), to which they relate, regardless of when actual payment of money and (or) other forms of payment (Sec. 1, Art. 272 ​​of the Tax Code). Consequently, called the norm of the Tax Code does not give the taxpayer the right to randomly select the tax period in which the composition of non-operating expenses include bad to recover the debt. In accordance with Articles 8 and 12 of the Federal Law of 21.11.1996 № 129-FZ "On accounting" of the organization prior to the preparation of annual financial statements to ensure the reliability of accounting data and financial statements are required to conduct an inventory of assets and liabilities, in which are verified and documented appropriately their availability, status and evaluation. The inventory shall be timely recording in the accounts without any omissions and withdrawals. A similar requirement for the timing of the inventory provided by Section 27 of the Regulation on Bookkeeping and Accounting (Approved by Order of the Russian Ministry of Finance of 29.07.1998, № 34n). In view of § 5.5. Methodical instructions on the inventory of assets and liabilities (approved by Order of the Russian Ministry of Finance of 13.06.1995 № 49) The results of the inventory should be reflected in the accounting and reporting of the month in which the inventory was completed, and on the annual inventory - in the annual financial report . Thus, the expiration of the statute of limitations on outstanding liabilities of counterparties taxpayer should learn during the annual inventory of assets and liabilities. Violation of this legal regulation of the taxpayer, was summed up in dereliction of duty for inventory commitments statutory period and the publication of the relevant order in the later period can not be regarded as a reason for not including accounts receivable with expired legal term in the non-operating expense in the period in which the statute of limitations had expired. The provisions of paragraphs. 2, § 2 of Art. 265, Art. 266 of the Tax Code in conjunction with the above regulations governing accounting, include the obligation of the taxpayer to take into account the amount of the obligations of debtors, for which the statute of limitations has expired, in the non-operating expenses in a given tax period (the year of expiration of the period), rather than randomly selected the taxpayer.

The Decree of the Moscow District FAS (case of 04.10.2011, № A40-3639/11-20-16) noted that the payment of customs fees for customs clearance of goods by filing a temporary customs declaration is paying all the actions of customs authorities for customs clearance of goods. Therefore, these charges are included in costs by AP. 1, § 7, Art. 272 of the Tax Code.

The Decree of the Moscow District FAS (case of 16.09.2011, № A40-130812/10-127-755) with reference to paragraph 1 of Art. 258 of the Tax Code and Government Decree of 01.01.2002 № 1 "On the Classification of ..." pointed out that if the useful life of engineering systems within the building structurally determined at the date of commissioning of these facilities depreciable property, significantly different from the useful life of the building, the taxpayer was entitled to take them to the accounting and tax accounting as separate facilities operating with such a cushioning them to different groups.

The Decree of the Moscow District FAS (case of 13.09.2011, № A40-127287/10-89-913) noted that if the counterparty to the transaction is illegal, in violation of Art. 164 of the Tax Code, put an invoice with the VAT rate of 18%, then such amounts should be considered unjust enrichment by virtue of Articles 1102 and 1103 of the Civil Code and are subject to return of the organization. According to the legal position set out in the Decree of the Presidium of the Russian Federation of 20.12.2005 № 9263/05 and Determination of the Constitutional Court of 15.05.2007 № 372-O-P, the taxpayer is not entitled at his discretion, to change the tax legislation the tax rate . A zero rate of VAT is an indispensable element of taxation. The current legislation does not provide legal ability to change the tax rate established by agreement between the parties. The fact that the contractor has paid the specified amount of VAT to the budget is to rise to a refined his tax return in the manner prescribed the Tax Code, and the relationship to the return of unjustly acquired organization does not have.

The Decree of the Moscow District FAS (case of 14.09.2011, № A40-123143/10-116-503) noted that the lack of commercial invoices TORG-12, which claimed deductions for VAT, stamp allotment of goods, job titles, decrypt the signature and the date is not an obstacle to the adoption of the VAT deducted, as the Tax Code does not provide requirements for completing the commercial invoice.

The Decree of the Moscow District FAS (case of 12.09.2011, № A41-36076/10) noted that if the taxpayer voluntarily listed the amount of tax additionally charged him based on the decision of the tax authority, and subsequently by a court decision of tax authority recognized illegal and the money returned, the taxpayer's claim for payment of interest on the amount of tax not subject to the satisfaction.

Resolution of the Federal District of Moscow (the case of 25.08.2011, № A40-92695/10-70-447) with reference to paragraph 3 of Art. 61, § 4 of Art. 90 of the Civil Code, § §. 3 and 5, Art. 20 Art. Federal Law of 08.02.1998 № 14-FZ "On Limited Liability Company" denied the claims of the tax authority of the compulsory liquidation of company. In support of the claim the tax authority indicates that the results of this analysis the balance sheets of the company for the disputed period and calculation of net assets of the past have had negative values​​. Court rejected the claim is legitimate because it does not prove the existence of gross violations of the society of the current legislation, bearing an inherent character, and the decrease of the net assets do not constitute grounds for immediate liquidation.

Resolution of the Federal District of Moscow the case of 29.07.2011, № A40-94667/10-13-439) is recognized as a legitimate inclusion of costs in determining the tax base for income tax expenses for renting an apartment foreign staff, as required by the provisions of subsection 5, Art. 16 of the Federal Law of 25.07.2002 № 115-FZ "On the Legal Status of Aliens" and nn. "D" of paragraph 3 of the representation guarantees ... (approved by RF Government Decree of 24.03.2003, № 167), whereby the responsibility for housing foreign workers in accordance with Russian law on legal status of foreign citizens lies with the employer. At the same time, these payments are not taxable personal income tax by virtue of paragraph 3 of Art. 217 of the Tax Code.

The Decree of the Moscow District FAS (case of 11.07.2011, № A40-119193/10-116-455) noted that an incorrect reference number CCD contractor on the invoice, as well as its absence in the electronic database of customs authorities did not prevent the application of tax deductions for VAT. The taxpayer-purchaser under the applicable law does not bear the burden of negative legal consequences for failing the information specified by the supplier.

Resolution of the Federal Antimonopoly Service of the Moscow District of 08.07.2011, № A40-78880/10-76-405 declared illegal the decision of the tax authority in the application of paragraph 2 of Art. 269 ​​of the Tax Code (the right to include in the expenses of only a portion of accrued interest, because the organization has outstanding debts on debts owed to the foreign company, which owns 100% of the share capital of the company, while the value of liabilities of the company on a loan for more than three times its equity capital) . Court rightly found that the taxpayer is entitled to include in the expenses of the entire amount of accrued interest, as in this case, the rules of Art. 7 of the Tax Code, and the treaty of the Russian Federation and the Republic of Cyprus establishes other rules laid down in Art. 24 of the Agreement on Avoidance of Double Taxation with respect to taxes on income and capital from 05.12.1998.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 08.07.2011, № A40-100870/10-4-500) with reference to Articles 171 and 172 of Tax Code, noted that the taxpayer is entitled to a deduction to the amount of VAT paid in the cost of goods (works, services) purchased for the restoration of property, including in the case of a taxpayer to indemnity for the damage said property. Chapter 21 of the Tax Code contains no provision prohibiting the adoption of VAT amounts to a deduction if the insurance company agreed to pay the insurance indemnity, which includes the cost of repairs to VAT.

Resolution of the Federal Antimonopoly Service of the Moscow District (Case of 06.07.2011, № A41-8534/10) is recognized as valid the assignment of the costs of depreciation of, donated fixed assets, as the property is transferred by the taxpayer to the counterparty for the execution of works contracts. Norms of Paragraph 3, Article. 256 and n. 2, Art. 322 in this case, the application can not be.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 30.06.2011, № A40-99462/10-114-530) noted that, according to subsection 4, section 4 of Art 45 of the Tax Code only required props in the payment order, without which the obligation to pay tax is not considered fulfilled — the account number of the Federal Treasury and the name of the beneficiary's bank, in case of improper instructions whose funds are not received in the budget system of Russia. Requirements of the correctness of instructions OKATO this article does not provide.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 30.06.2011, № A40-99462/10-114-530) noted that the rules of Articles 169, 171 and 172 of the Tax Code contains an exhaustive list of the conditions under which the taxpayer has the right to use tax deductions: the presence of invoices for purchased goods (works, services), prepared in accordance with the requirements of Art. 169 NKF Russian Federation and the adoption of goods (works, services) to integrate, use of goods (works, services) in taxable transactions, the presence of the primary documents. In the event that a taxpayer who is a special tax regime, put the primary documents from VAT, it is on him, by virtue of claims 1 to Section 5, Art. 173 of the Tax Code, an obligation to pay to the budget presentation of the invoice amount of the tax and the buyer, paying the cost of purchased goods (services), including VAT, may declare the amount of tax to be deductible.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 27.06.2011, № A40-55988/10-142-307) noted that the absence of the taxpayer permission to install the advertising structure is not a document that confirms the validity of the allocation of costs to the costs taken into account when calculating the tax income in accordance with Chapter 25 of the Tax Code. According to paragraph 4 of Art. 264 Russian Federation to the cost of advertising the organization include the costs of light and other forms of outdoor advertising, including production of promotional stands and billboards, as well as costs for other types of advertising.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 24.06.2011, № A40-94204/10-142-498) with reference to Art. 252 of the Tax Code noted that the absence of acts performed by service names of officers and decrypt signatures of the officials is not grounds for withdrawal of improper execution of documents, as in all acts performed services for parties that formed these documents are signed and stamped each of the parties.

The Decree of the Presidium of the Russian Federation of 12.07.2011 № 9149/10 was referring to Art. 249 of the Tax Code noted that if the rent for the use of non-residential premises consist of fixed and variable (utilities, etc.) parts, the compensation cost of tenant services variables leads to the formation of economic benefits to the lessor. This compensation for the landlord to be included in taxable income in the general procedure. Paying for utilities and other related content services to non-residential premises, the employer performs his own duties assigned to him by the lease contract, to provide the tenant of the property in a condition appropriate to its purpose, and therefore the payment for these services is the cost required to carry out entrepreneur activities aimed to receive income from rental of property.

The Decree of the Presidium of the Russian Federation of 05.07.2011 № 1407/11 was noted that paragraph 4 referred to Art. 170 of the Tax Code generally separate accounting of VAT on purchased goods (works, services) applies to cases where the taxpayer performs as both taxable and tax-free (excluded from taxation) operation on any grounds provided by Chapter 21 of the Tax Code. Reinterpret § 4 of Art. 170 of the Tax Code does not agree with in paragraph 2 of this article the general order of allocation of amounts of tax on the cost of producing and selling goods (works, services). The provisions of paragraph 2 of Article 170 of the Tax Code are applicable not only in the amounts of VAT paid in expenses directly related to the main activity of the society, but also concern about the use of tax deductions of amounts of tax paid in the general running costs. Thus, society has no right to impose a tax deductible amount of VAT paid in the general running costs, in part (aspect ratio), attributable to operations for the production and sale of goods (works, services) are not recognized as subject to taxation in accordance with Chapter 21 of the Tax Code.

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 05.07.2011 № 2346/11 was referring to the Articles 258 and 375 of the Tax Code, paras. 18 and 19 PBU 6/01, "Accounting for Fixed Assets" and Section 54 of the Guidelines for Accounting of fixed assets (approved by order of the Russian Ministry of Finance from 13.10.2003, № 91n) noted that, if obtained under a leasing agreement equipment accounted for in accordance with the terms of the balance of the lessee, the lessee is the use of accelerated depreciation rate equal to three, is illegal. The useful life, representing a time during which a fixed asset is used for the purposes of the taxpayer, not to be arbitrary and to be determined for both tax and accounting based classification of fixed assets (approved by RF Government Decree 01/01 .2002, the number 1).

The Decree of the Moscow District Federal Antimonopoly Service (Case of 19.05.2011, № A40-31488/10-142-189) noted that in accordance with Article 252 of the Tax Code possibility of accounting for certain expenses for the purposes of calculating income tax depends on the availability of documents supporting the costs incurred, the tax legislation does not specify requirements for documentation, which can be confirmed by the economic justification of costs and neither a list of such documents, nor their shape. In this connection, the taxpayers in order to confirm the economic viability of costs can be any, they may have internal organizational and administrative documents justifying the purpose of the disputed costs. Condition for the inclusion of costs in cost is the opportunity on the basis of available documents to the conclusion that the costs actually incurred. Into account should be taken by the taxpayer, any evidence to prove the fact and amount of these costs, which are subject to legal assessment in conjunction. Errors in the design of some source documents can not serve as grounds for refusal to recognize the costs if the costs are confirmed by other documents. Violation of the rules of registration of the primary accounting documents is a violation of legislation regulating relations in the sphere of accounting, but by itself does not entail the conclusion that there is no cost and as such is not an independent ground for exclusion from the costs actually incurred by the taxpayer costs.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 04.05.2011, № A40-173950/09-90-1323) noted that the signing of the original documents with other counterparties using facsimile signature reasonably deemed by the court not involving the tax consequences of a refusal to refund taxes value added tax and the recognition of expenses for tax purposes. By virtue of paragraph 2 of Art. 160 of the Civil Code to use in transactions facsimile reproduction of signatures by means of mechanical or other copying, digital signatures or other analogue of a handwritten signature is allowed in cases and in the manner provided by law, other legislation or agreement of the parties.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 21.04.2011, № A40-162831/09-142-1356) with reference to the definitions of the Constitutional Court from 24.01.2008, № 33-O-O of 05.03.2009 and was № 468-O-O pointed out that the taxpayer must prove the services rendered by the counterparty to the transaction (including foreign), and have the appropriate documents proving the business transactions. Typically, a document confirming the fact of service is an act of the Service or other similar document, which contains a description of services rendered. The Company operates in the Russian Federation shall exercise its right to receive tax benefits in accordance with the provisions of the Tax Code, not the tax laws of a foreign state. Russian tax legislation to taxpayers must meet certain requirements in the implementation of the above rights, that does not relieve the taxpayer from complying with the tax authority to submit documents, duly registered, that is in accordance with Art. 252 of the Tax Code, Art. 16 of the Russian Federation of 25.10.1991, the № 1807-1 "On the languages ​​of the peoples of the Russian Federation", paragraph 9 of the accounting. The Court also necessary to examine these documents from the position of the completeness of the content. Establish as to whether the content of such a document identifying issues on which consultations are undertaken, the amount, nature and direction of the services rendered, correct formation of the actual cost of services.

Resolution of the Federal Antimonopoly Service of the Moscow District (Case of 31.03.2011, № A40-53114/10-107-280) declared illegal the refusal of the tax authority to refund overpaid tax in connection with the omission of the term by the taxpayer to apply for the refund of tax (3 years, section 7, Art. 78 of the Tax Code), because of the fact that too much tax in the stated amount and the exact amount of the overpayment the taxpayer recognized upon signing the act of a joint verification of calculations. Evidence that the taxpayer was aware of the presence of an overpayment by the court previously set date, the tax authority has been submitted.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 21.04.2011, № A41-16966/10) noted that, in accordance with paragraph 1 and paragraph 3 of Art. 93 Tax Code, the tax authority official conducting a tax audit, may require from the person required to check documents by presenting a single face (its representative) the requirement to submit documents (part 1). Documents that have been reclaimed during a tax audit, shall be submitted within 10 days from the date of deposit of the relevant requirements (Section 3). As the demand for documents was delivered to the taxpayer, the duty to submit the documents had not arisen. This finding is consistent with the above rules and the determination of the Constitutional Court from 12.07.2006 № 266-O, according to which the duty of presenting the documents for tax deduction arises from the taxpayer of the receipt with the tax authority to submit such documents. The cause of failure of the documents confirming, in accordance with Art. 172 of the Tax Code the right to tax deductions, was not the absence of these documents, and ignorance of the taxpayer to demand and obtain the documents by the tax authority.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 18.04.2011, № A40-93116/10-13-423) noted that the organization is entitled to a lump sum attributable to expenses that reduce taxable income, the cost to repair the premises (Article 260 of the Tax Code) to based on preliminary contract of lease. The fact that the main lease agreement was not concluded, does not prevent accounting costs, since in accordance with Art. 252 of the Tax Code recognizes expenses any costs to generating revenue. Conclusion of the preliminary contract by a court of circumstances indicating the intention of the society to generate revenue.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 18.04.2011, № A40-93116/10-13-423) noted that the investigator's decision to suspend the investigation in connection with the establishment of no person to be brought in as a defendant, is sufficient to write off the cost because the fact of theft and the fact that the culprit is not the establishment is confirmed. Therefore, the community in accordance with paragraphs. 5 para 2 of Art. 265 of the Tax Code, legally classified as non-operating expenses in the form of loss of shortage of material assets in case of absence of the perpetrators, as well as losses from theft, the perpetrators are not identified.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 14.04.2011, № A40-75795/10-76-386) with reference to the definition of the Constitutional Court from 04.06.2007 № 320-OP admits to the inclusion of the costs, accounted for the profit tax, the cost of renting the pool because, in accordance with section 25 of Art. 255 of the Tax Code in spending taxpayer's payroll includes all expenses incurred for the benefit of the employee, provided the employment contract and (or) collective bargaining agreement.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 14.04.2011, № A40-78540/10-99-387) with reference to the provisions of paragraphs 3, 9, 34, 35 PBU 19/02 "Accounting for Investments", Section 5 PBU 9 / 99 "Revenues organization," Section 11 of the Regulations on accounting and financial reporting in the Russian Federation (approved by Order of the Ministry of Finance from 29.07.1998 № 34n) noted that the costs associated with providing the organization to other organizations of loans are recognized as other expenses organizations, and be reflected in the account 91-2. Score 91 is used to record revenues in the amount of interest on loans granted by virtue of the fact that the granting of loans to third parties is not the main activity of the society. Consequently, the costs are debited accounts 90 may not apply to activities related to the implementation of investments, and therefore the argument of the inspection company exceeded five per cent barrier set by the requirements of Sec. Clause 4 of Article 9. 170 of the Tax Code, is not taken into account, because under this regulation must determine the share of total expenditure on the production of goods (works, services), property rights, implementation of the operations which are not taxable, the total value of the total cost of production, rather than the share of revenue.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 13.04.2011, № A40-79230/10-35-409) noted that Article 18 of the Federal Law of 24.07.2009, № 212-FZ "On insurance premiums ...", the following rules the payment of insurance premiums. Payers of insurance premiums required to timely and fully pay the premiums (Item 1). The obligation to pay insurance premiums shall be considered performed by the payer of insurance premiums, unless otherwise provided in Part 6 of this article from the date the bank in order to transfer to the budget of the state extra-budgetary funds to the account of the Federal Treasury (with an appropriate budget classification code) in cash from the account payer insurance premiums in the bank if it enough money to balance the day of payment (items 1 5). The obligation to pay insurance premiums is not recognized if performed incorrectly indicated payer insurance premiums in the order for transfer of insurance premiums account number of the Federal Treasury, the budget classification code, and (or) the name of the beneficiary's bank, which caused non-listed this amount in the budget of the state budget fund for the corresponding Federal Treasury account (paragraph 4, subsection 6). Consequently, the error when you specify the CSC in this case caused no flow of funds in budget fund to the account of the Treasury.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 08.04.2011, № A40-82912/10-146-420) with reference to paragraph 22 of Resolution of the Plenum of the RF from 17.02.2011 № 11 noted that paragraph 3 of Article 18.15 of the Administrative Code Russia establishes responsibility for failure to notify immigration authorities, and not notice him out of time. With this in mind the composition of the offense covered only cases where at the time of detection of an administrative offense the person has not notified the immigration authorities to bring to work a foreign citizen or stateless person.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 31.03.2011, № A40-54251/10-111-293) noted that if the taxpayer in acquiring the goods did not act as a customer of the contract of carriage, the view waybills on form number T-1 is not required, to support the reality of delivering the goods may be submitted invoices in the form of trafficking in number 12, and invoices.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 31.03.2011, № A40-56286/10-99-272) noted that the statutory deadlines for the implementation of procedures for tax collection (arrears, penalty) are preclusive and not be recovered. Article 70 of the Tax Code provides that the request must be made ​​within 3 months after the onset of the obligation to pay taxes or within 10 days from the date of the decision on raising the tax liability. After the expiration of the voluntary payment of the tax authority decides to collect taxes through cash in the accounts of the taxpayer in the bank (no later than 60 days after the expiration of the tax requirements). Decision on collection, taken after the expiry of the deadline will be considered invalid and shall not be enforceable. Thus, if the sum of those provided for in Articles 70, 46, 47 of the Tax Code in order to recover the said arrears, has expired, for example, in 2003 - 2004., This is evidence of the illegality of the payment of its claim in 2010.

In the Decree of the Moscow District of FAS, the 29/03/2011 (case number A40-57145/10-99-284) declared illegal tax agency collection letter, as exposed inspection requirements do not contain information about the grounds of levying taxes on the amounts of arrears, which accrued penalties, and interest accrual periods, fines (the requirements were put up on the basis of a cash balances). In accordance with Art. 69 of the Tax Code requirement should include details of the grounds for levying tax on the amount of arrears, which accrued penalties and interest accrual periods, fines, and to the provisions of the legislation on taxes and fees, which establish the obligation of the taxpayer to pay tax. The absence of these data suggests the invalidity of the claims based on the legal position set out in the Resolution of the Plenum of the RF from 28.02.2001 № 5.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 21.03.2011, № A40-36395/10-107-192) noted that the payment of public accommodation (rent and payment of utility services), non-resident workers for the duration of labor contracts is compensated by moving to work in another locality with regard to the provisions of Articles 164, 165, 169 of the Labor Code, and the amount paid by the company are not subject to tax on personal income.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 21.03.2011, № A40-36395/10-107-192) noted that the fact that the lack of travel documents to print the host does not refute the fact finding trip, because there are orders of the mission, office jobs, travel card and expense reports on Form AO-1.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 10.03.2011, № A40-35160/10-114-197) with reference to the paragraphs. Section 3, Article 2. 170 of the Tax Code stated that society should not recover the VAT from shortage, damage items, as the legislation on taxes and fees contains no provisions requiring the taxpayer to recover the VAT on goods, unused to the activities subject to VAT because of the impossibility of such use, damage, loss.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 16.02.2011, № A40-160420/09-115-1142) with reference to Art. 247 of the Tax Code noted that paragraph 1 of Art. 309 of the Tax Code provides a list of private income received by a foreign organization that is not related to its business activities in Russia include the income of a foreign organization from sources within the Russian Federation and shall be subject to tax withheld at the source of income.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 07.02.2011, № A40-38778/10-127-180) noted that the sale of goods for export are not included in the list of transactions that are exempt from taxation, and therefore the provisions of paragraph 4 of Article 149 and 170 NC Russia to export transactions do not apply. Duty organizations maintain separate accounting records transactions of sale of goods for export to the Russian Tax Code does not provide.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 04.02.2011, № A40-59413/10-13-316) noted that the documents, which shall be made overseas posting, in accordance with the Decree of the State Statistics Committee of Russia of 05.01.2004 № 1 (in particular order (the order) to send an employee on a business trip (form number T-9 and T-9a) and a service job (form number of T-10a)), their presence and design determined by the internal document organization and to document for tax purposes profit organizations is not compulsory. Court's findings are consistent with the position of the Russian Finance Ministry, comprising, for example, in a letter dated 06/12/2002, the № 16-00-16/158, which states that the organization may issue a regulatory document that sets out a list of documents that are the basis for sending an employee on a business trip.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 03.02.2011, № A40-81012/09-20-527) with reference to paragraph 8 of Art. 50 Tax Code, noted that the allocation of a legal entity of one or several legal entities in relation to the succession of the reorganized entity in terms of the performance of his obligations to pay taxes (fines, penalties) does not arise. If the selection of a legal entity of one or several legal entities, the taxpayer is unable to perform the full obligation to pay taxes and the reorganization was designed to breach of duty to pay taxes (penalties and fines), pursuant to a court evolved entities may jointly carry out the obligation to pay taxes (penalties and fines) of the reorganized entity.

The Decision of the Supreme Arbitration Court of 19.05.2011 № 3943/11 noted that paragraph 3 of Art. 170 of the Tax Code provides for cases in which the amount of tax taken by the taxpayer to a deduction for goods (works, services), including fixed assets and intangible assets, property rights, be reversed. Legislation on taxes and fees contains no provisions requiring the taxpayer in writing off the goods after the expiry date to recover the amount of VAT previously lawfully taken for deduction. In particular, does not constitute grounds for recovery of amounts of tax write-offs in the budget (the destruction) of inventory in connection with their loss, damage, shortage, marriage.

The Decree of the Presidium of the Russian Federation from 26.04.2011 № 23/11 was noted that the use of tax deductions for VAT is the right of the taxpayer, has a declarative character by declaring them in the filed to the tax authority and tax returns can be realized only under defined in chapter 21 of the Code of conditions. Failure to declare tax deductions does not deprive taxpayers of their right to use in the future, under the conditions laid down in Articles 171 - 173 of the Tax Code.

The Supreme Court on 06.06.2011, № GKPI11-617, with reference to Art. 185 of the Civil Code and the Federal Law on 21.011.1996 № 129-FZ "On Accounting", found that a power of attorney for inventory may be granted not only to employees of organizations, as provided in the Regulations of the USSR Ministry of Finance of 14.01.1967 № 17, but also other persons who are not with the organization of labor relations.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 03.02.2011, № A40-49882/10-142-274) noted that the Tax Code contains no requirement that the amount of tax may be taken as deductions only during the period of sale of goods, and not can be taken as deductions in subsequent tax periods not exceeding three-year period since the end of the tax period in which the tax was paid. Application of the tax deduction for VAT is a right, not an obligation of the taxpayer and is entitled to use it in any period in the presence of bases and the documents under Art. Art. 171, 172 of the Tax Code.

Decision of the Russian Federation from 17.05.2011, № VAS-3440/11 for taxpayers who use STS with a taxable "income" found that they may reduce the amount of tax (Income tax), but not more than 50%, not only paid on contributions to OPS employees and paid from the taxpayer's temporary disability benefits, and paid contributions for OMC, OSS and injuries. Line 280 of tax return in that part of the declared inactive since 01/01/2010 because it does not correspond to the second paragraph of Section 3, Article. 346.21 of the Tax Code. The above has been previously noted in a letter to the Federal Tax Service of Russia of 03.03.2011, № KE-4-3/3396@ (See review of 03/23/2011).

The Decree of the Moscow District Federal Antimonopoly Service (Case of 31.01.2011, № A40-58773/10-111-314) on a matter related to the failure by the taxpayer claims the tax authority to tax (penalties, fines) on a voluntary basis and then setting a tax authority collection order to enforce the money from the account on which the taxpayer's money written off, noted the following. Paragraph 3 of Article 79 of the Tax Code provides for a taxpayer to choose a way to protect their violated rights in the event that the tax authority sought from him the amount of taxes, fees, penalties, fines too, that is unwarranted or illegal. In this case the Tax Code does not contain any indication that the right to appeal to the court a taxpayer is subject to pre-treatment by the tax body at the return of amounts recovered. Do not set this order and other federal law. Such an interpretation is given in the decree of the Presidium of the Russian Federation of April 20, 2010 № 17413/09. The statement of claim in court can be filed within three years from the date when the person knew or should have known about the over collection of tax.

The Decree of the Presidium of Supreme Arbitration Court of 05.04.2011 № 2574/09 was noted that if the possibility of the application for judicial review of acts of a supervisory lost, subsequently forming the Supreme Arbitration Court of the Russian Federation's legal position on the disputed the question is not the basis for revision of the case of newly discovered evidence.

The Decision of the Supreme Arbitration Court of the Russian Federation of 19.05.2011 № 3943/11 was noted that paragraph 3 of Art. 170 of the Tax Code provides for cases in which the amount of VAT deductible by the taxpayer received the goods (works, services), including fixed assets and intangible assets, property rights, be reversed. Write-off items that have expired (sales) to the number of cases listed in Section 3, Article. 170 of the Tax Code does not apply.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 27.01.2011, № A41-8360/10) noted that if the company - the buyer is not a customer of the carriage, was not involved in the transportation of goods, the waybill, in this case does not provide and should not be granted in conjunction with other documents to the tax office during the inspection. To apply the tax credit on VAT should have been complied with the order established by Articles 171 and 172 of the Tax Code.

The Regulation of FAS Moscow District (Case of 24.01.2011, № A40-49822/10-114-278) noted that Secs. 28 paragraph 1 and paragraph 4 of Art. 264 of the Tax Code does not define an exhaustive list of documents that could confirm the incurring advertising costs. The opinion of the tax authority that the fact that advertising in the broadcast media should be confirmed by the ethereal certificates issued by the broadcaster, not based on the norms of art. 252 of the Tax Code.

Resolution of the Federal District of Moscow (the case on 21.01.2011, № A40-37674/10-111-199) declared illegal the decision of the tax authorities of the need to restore the amount of VAT payable on defective products, as qualified expenses (marriage or recurrent waste) on rules of Chapter 25 of the Tax Code does not affect the applicant's right to apply tax deductions for VAT by virtue of Art. 173 of the Tax Code.

The Regulation of FAS Moscow District (Case of 21.01.2011, № A40-27538/10-20-203) with reference to paragraph 7 of Art. 1988 Tax Code, noted that the submission of tax returns for income tax is not one of those cases where the Inspectorate has the right to request additional documents by Art. 1988 Tax Code, and Chapter 25 of the Tax Code does not provide for duties of the taxpayer to submit to the tax authority, together with the tax return for income tax documents to prove the correctness of tax calculation, the courts have indicated that the accountability for failure disputed documents is illegal. Under paragraphs 6, 8, 9, Art. 1988 Tax Code, the obligation of the taxpayer to submit additional documents arises when testing the legality of using tax credits, with submission of VAT declaration, which states the right to a refund of tax, while checking the correctness of tax calculations relating to the use of natural resources.

The Regulation of FAS Moscow District (Case of 17.01.2010, № A40-168181/09-142-1421) noted that a separate division is considered established if there is evidence of a separate division under Section 2, Article. 1911 Tax Code. Including the information about the branch in the constituent documents of the applicant in its state registration indicates the intention of the founder of the Company to create a separate division and not on job creation and operation of more than a month. Date of creation and the beginning of the activities of a separate division is to conclude a lease of uninhabited premises, date of creation of jobs, recruitment director of the branch, since it is from the equipment of a stationary workstation and the beginning of the location of the unit tax law relates the creation of a separate division.

The Regulation of FAS Moscow District (Case of 17.01.2011, № A40-161298/09-145-585) noted that the reference in the customs declaration incorrect code TN VED of Russia goods wrongfully classified by Customs to the unlawful act, responsibility for which is provided by Part 2 Rule 16.2 of the Code of Administrative Offences. Possible discrepancy code is subject to elimination by the customs authority when verifying a customs declaration, provided that other information about the number, properties and characteristics of the goods indicated significantly.

The Regulation of FAS Moscow District (Case of 14.01.2010, № A40-174645/09-35-1328) noted that the withdrawal of the tax authority on the economic unreasonableness Company incurred costs inconsistent with the provisions of tax laws, because the competence of the tax authority does not include verification of incurred taxpayer costs from the perspective of their feasibility, effectiveness and efficiency.

The Regulation of FAS Moscow District (Case of 30.12.2010, № A40-34501/10-75-156) noted that not apply to personal income and are not included in the taxable base for personal income tax and unified social tax, reimbursement of travel the employee organization including cash, issued in accountability for the purchase of tickets for the performance of work, bearing with traveling.

The Regulation of FAS Moscow District (Case of 30.12.2010, № A40-2036/10-90-26) noted that Art. 169 of the Tax Code does not impose on the taxpayers' obligation to decrypt the signature (s) of the head and chief accountant of the invoice, so the failure to refund VAT on the stated reason contradicts item 2, Art. 171, Section 3, Article. 172, Art. 169 of the Tax Code.

The Regulation of FAS Moscow District (Case of 14.01.2010, № A40-174645/09-35-1328) noted that, in accordance with paragraph 7 of Article. 259 of the Tax Code (from 1.1.2011, — the n. 1, Art. 259.3 of the Tax Code) in respect of depreciable assets used for work in aggressive environment or increased shift to accelerated depreciation the taxpayer is entitled to apply a special coefficient, but not higher 2. Fact increased shift in production in the workshops, carried out by the taxpayer, is confirmed by evidence presented in the materials of the case: full-time schedules for workshops, working hours, replaceable rapport monthly report cards are working. In addition, tax law does not provide a clear list of documents required to provide evidence for increased shift work.

The Regulation of FAS Moscow District (Case of 29.12.2010, № A40-8556/10-140-91), with reference to paragraph 2 of Art. 211, Section 3, Article. 217 of the Tax Code, Art. 196 TC RF noted that payment of the cost of training workers is not included in their income, if training is provided by the employer in order to more effectively perform the functions of labor workers.

Resolution of the Federal District of Moscow (the case on 29.12.2010, № A40-86768/08-112-449) to the taxpayer refused to invalidate the decision of the tax authorities of the accrual of income tax, VAT, as the court in a case not established a manifestation of society should prudence and caution in selecting their contractors as well as in contract, signing acts and payment of services rendered, it is not asked about the presence of active CEOs, authorized to sign financial and economic documents, and examined the credentials of the persons with whom negotiated.

The Regulation of FAS Moscow District (Case of 28.12.2010, № A40-168732/09-127-1389) noted that under Secs. 2, paragraph 3, Article. 257 of the Tax Code to intangible assets include the exclusive right of the author and copyright holder to use a different computer programs, databases. Standards of Chapter 25 of the Tax Code does not prescribe a uniform recognition of the cost of purchasing software for the period for which granted non-exclusive right to use them. According to Secs. 26 n. 1, Art. 264 of to the other costs associated with production and sales include costs associated with the acquisition ofrights to to use computer programs and databases under contracts with the owner ( of licensing agreements ).

The Regulation of FAS Moscow District (Case of 28.12.2010, № A40-168732/09-127-1389) noted that from paragraph 1 of Art. 257 of the Tax Code does not directly imply that the costs of certification of equipment related to costs for its acquisition, construction, fabrication, delivery, bringing to usable condition, so in this case it is possible to use paragraphs. 2 of Section 1, Art. 264 of, according to which the other costs associated with production and sales include the cost of certification of products and services.

Resolution of the Federal District of Moscow (the case on 30.07.2010, № A41-30741/09) with reference to Art. 1916 Federal Law of 25.07.2002 № 115-FZ "On the Legal Status of Foreign Citizens in the Russian Federation " and Section 3 of the Decree of the Government of the Russian Federation of 24.03.2003 № 167 recognized as lawful assignment of the expenses deductible from taxable income the cost of housing foreign citizen during his stay in Russia, under the employment agreement, on the basis of this authorization. Provision of housing for foreign nationals working in the enterprise, is the responsibility of the enterprise. These costs are incurred to enforce foreign workers of their job duties, not to meet their personal needs in housing, which confirms that they were made ​​for the implementation of productive activities. Therefore, in accordance with paragraph 49 of article. 264 of these expenses are accounted as expenses for purposes of calculating income tax.

The Regulation of FAS Moscow District (Case of 22.12.2010, № A40-106667/09-129-1223) noted that the legislation on taxes and duties of the Russian Federation does not bind the taxpayer's right to refer to expenses when calculating income tax expenses to the presence or absence he has a license agreement that is registered with the Federal Service for Intellectual Property, Patents and Trademarks, the right to use the trademark. In accordance with paragraphs. 28 n. 1, Art. 264 of to the other costs associated with production and sales, advertising costs are made ​​(purchased), and (or) the traded goods (works, services), the taxpayer, a trademark and service mark, including participation in fairs and exhibitions.

The Regulation of FAS Moscow District (Case of 22.12.2010, № A40-106667/09-129-764) noted that the responsibility for drawing up invoices giving rise to the application of the tax deduction by the taxpayer - the buyer of goods (works, services) and incorporate the information specified in Article 169 of the Tax Code, for the seller. Therefore, subject to the counterparty of these requirements on registration of documents required grounds for withdrawal of the unreliability of any conflicting information contained in these invoices are not available, if not installed circumstances indicating that the taxpayer knew or should have known that the seller provides false or contradictory information. In the absence of evidence is not making business transactions, in respect of which included charges and claimed the right to a tax deduction, the conclusion that the taxpayer knew or should have known of the unreliability (inconsistency) of information can be made by the court as a result of evaluation in the complex of circumstances, related to the negotiation and execution of the contract, as well as other circumstances mentioned in the Resolution of the Plenum of the RF from 12.10.2006 № 53. Conclusion about the unreliability of the primary documents signed by persons not as identified in the founding documents of counterparties as the leaders of these companies can not own, in the absence of other facts and circumstances, considered as a basis for the recognition of tax benefits unfounded. Within the meaning of the provisions contained in paragraph 7 of Article 3 of the Tax Code, in the sphere of tax relations is a presumption of good faith. Enforcement authorities have no right to interpret the term "bona fide taxpayers' as imposing on the taxpayers additional duties not covered by the legislation, including the set of real leaders of these organizations and to investigate the authenticity of signatures on primary documents.

The Regulation of FAS Moscow District (Case of 21.12.2010, № A40-152886/09-80-1165) noted that the provisions of paragraph 5 of Article. 173 of the Tax Code provides that the amount of tax payable to the budget, calculated by the following persons in the case of issuing them to the buyer an invoice with an amount of tax: 1) persons who are not taxpayers, or taxpayers, exempt from the duties of the taxpayer related to the calculation and payment of tax, and 2) the taxpayer for the sale of goods (works, services), operations, implementation of which is not taxable. In this case, the amount of tax payable to the budget, defined as the amount of tax indicated in the invoice that was delivered to the buyer of goods (works, services). Consequently, invoicing with a dedicated amount of VAT on transactions that are not subject to this tax, can not serve as grounds for denying the public the right to use the tax deduction.

The Regulation of FAS Moscow District (Case of 24.12.2010, № A40-26035/10-75-123) with reference to Secs. 16 n. 1, Art. 264 of noted that the board state and (or) private notary for notarization applies to other costs associated with production and sales and accounted for by the taxpayer in the costs when calculating income tax in the range of tariffs, approved in the prescribed manner. In this legislation the Notary does not contain mandatory requirements in order to fill the notary documents certifying the fact of providing notarial services.

The Regulation of FAS Moscow District (Case of 14.12.2010, № A40-153275/09-142-1226) noted that the availability of goods, works and services in a particular period is not a prerequisite for the application of VAT deduction.

The Regulation of FAS Moscow District (Case of 16.12.2010, № A40-12606/10-140-133) noted that during the repair and overhaul of fixed assets cost to repair does not increase the initial cost of fixed assets and are included in company's costs of the fiscal year in which the repairs were made. Consequently, the diversity of information on the cost of repairs in a card form № OS-6 is for informational purposes, and graphs in this section can not be filled with accounting staff responsible for fixed assets accounting. Stated requirement of the tax authority is not based on law.

The Regulation of FAS Moscow District (Case of 16.12.2010, № A40-139433/09-118-1206) with reference to Secs. 25 para 1 of Art. 264 Tax Code RF of noted that the legislation on taxes and duties of the Russian Federation does not contain any requirements for mandatory verification of a production nature of each taxpayer to the fact of use of communications services.

The Regulation of FAS Moscow District (Case of 10.12.2010, № A40-62863/10-122-366) noted that within the meaning of Article 4.5 of the Code of Administrative Offences within 2 months from the date of discovery of administrative violations must be taken is the decision of the case an administrative offense rather than draw up a protocol on administrative violation, which is proof of the case and captures the circumstances of violations.

The Regulation of FAS Moscow District (Case of 09.12.2010 № A40-9168/10-140-103) noted that since the submission of the society as a result of loans does not arise in the implementation of the operation, there are no transactions that are exempt from VAT, respectively There are no grounds for the application of the provisions on the apportionment of the VAT and the introduction of separate accounting under paragraph 4 of Art. 170 of the Tax Code.

The Regulation of FAS Moscow District (Case of 08.12.2010, № A40-13946/10-109-27) noted that since the directories (mailing of products offered to potential buyers) have no use value to the recipient, are in effect part 2 Art. 497 of the Civil Code means familiarize the buyer with a product offered by the seller, the courts make an informed conclusion that the directories themselves are not a commodity, in this connection their mailing does not constitute the object of VAT as a gratuitous transfer of goods by virtue of paragraph 1 of Article . 39 of the Tax Code and Secs. 1 of Section 1, Art. 146 of the Tax Code.

The Decree of the Presidium of Supreme Arbitration Court of 01.03.2011 № 13018/10 was noted that the labor law does not limit employers to pay workers compensation, non-labor activities. However, for tax purposes a list of payments to employees is limited. Such payments for referring to the costs into account for taxation revenue should be directly related to the performance of the employees of their employment duties under the employment relationship.

The Decree of the Presidium of Supreme Arbitration Court of 01.03.2011 № 14871/10 was noted that despite the fact that the organizations applying USN (STS), by virtue of Paragraph 3, Article. 4 of the Federal Law of 21.11.1996 № 129-FZ "On Accounting" are exempted from the accounting, they are obliged to keep records of fixed assets (in a particular case — the objects of real estate) and intangible assets, as well as comply with other regulations in the sphere of civil law regulation. Thus, the legislation provides for the approval procedure for a large deal (25% of the company's assets, determined on the basis of financial statements for the last reporting period preceding the date of the decision of the commission of such transactions, except transactions made in the ordinary course of business). To challenge the transaction by the Company, located on a simplified system of taxation on the grounds of its size the plaintiff must submit evidence that the transaction is the largest (in particular, to provide data accounting for the value of company assets or to require the examination to determine the value of its assets). Upon receipt of such evidence, the court rightly acknowledges the transaction null and void, and applies to it effects in the form of return of all parties received on transactions. In this case, the court invalidated a deal on the alienation of immovable property under Art. 46 of the Federal Law of 08.02.1998 № 14-FZ On Limited Liability Companies.

The Regulation of FAS Moscow District (Case of 16.11.2010, № A40-17811/10-127-67) noted that paragraph 3 of Article. 170 of the Tax Code establishes the cases in which the amount of VAT, the deduction taken for goods to be restored. Shortage and theft of the item does not.

The Decree of the Presidium of Supreme Arbitration Court of 01.02.2011 № 10230/10 was referring to paragraph 7 of Art. 1984 Tax Code, noted that if the documents in the transaction has an invalid (nonexistent) taxpayer identification number, then this fact is sufficient grounds for charging the buyer (customer) back taxes and penalties on VAT and income tax. Other proof of tax authority may not be, because the taxpayer acted without due diligence. Court made ​​the correct conclusion that the design on behalf of a non-existent entity can not serve as the basis for cost accounting and decision-tax deductions on the value added tax.

The Regulation of FAS Moscow District (Case of 12.11.2010, № A40-10103/10-140-109) noted that organizations have the right to develop his route sheet form or other document evidencing the costs incurred in the form of fuel, which should be reflected all the details provided by Section 2, Article. 9 of the Law "On Accounting". Lack of travel sheets indicate the purpose of the trip, place of origin, destination, departure time and the mark on the work undertaken in this case does not constitute grounds for the recognition of expenses not documented confirmed. Documentary evidence of the acquisition of fuel filling stations are checks that were presented to the tax audit. In addition, Russian law prohibits supervisory authorities to assess the feasibility of a business transaction.

The Regulation of FAS Moscow District (Case of 29.10.2010 № A40-155980/09-127-1225) noted that in accordance with paragraph 11 of Part 1, Art. 264 of to the other costs associated with production and sales, include the cost of the taxpayer for the maintenance of official vehicles. Order of 18.09.2008 № 152 of Ministry of Transport of Russia approved the mandatory details and procedure for completing trip tickets. Required to specify the route of this Order is not provided.

The Regulation of FAS Moscow District (Case of 29.10.2010 № A40-155980/09-127-1225) noted that the transactions contemplated pp. 2 of Section 1, Art. 164 of the Tax Code shall be subject to VAT at the rate of 0 per cent, provided that the goods are placed under the export customs regime at the time of these transactions or if the nature of the operations themselves, they may only be made in respect of export goods.

In Resolution of FAC, District of Moscow (case, dated 21/10/2010 № A40-167992/09-13-1421) noted that the sale of goods for export are not included in the list of transactions that are exempt from taxation, and therefore the provisions of paragraph 4 of Article 149 and 170 Tax Code Russia to export transactions do not apply. Duty organizations keep separate records of operations on the sale of goods for export to the Russian Tax Code does not provide. Based on the systematic interpretation of the rules of articles 170 - 172 of the Tax Code, the courts made a valid conclusion that is proportional to determine the amounts to be deducted, including on "general business" expenses, is made in the case of specific goods (work, service) at the same time used for both operations, subject to VAT and exempt from paying this tax. In other cases, when the product is only used when performing operations that are subject to VAT, or, conversely, are exempt from paying it, the adoption of VAT is deductible in accordance with Art. Art. 171, 172 of the Tax Code in its entirety, or accounting value of goods (works, services) in accordance with paragraph 2 of Art. 170 of the Tax Code.

In Resolution of FAC, District of Moscow (case, dated 19/10/2010 № A40-161448/09-116-938) noted that the tax law does not bind the right to tax deductions in fact reflected in the statements received earnings and payment of VAT to the budget of the supplier of goods, unless proven bad faith of the taxpayer.

In Resolution of FAC, District of Moscow (case, dated 8/10/2010 № A40-156412/09-126-1263) is noticed that the legislation on taxes and tax collections doesn't specify the acquired fixed assets should be reflected in what account of the business accounting, and also the order of compensation of the sums of the VAT depending on reflection of cost of the acquired fixed assets on any concrete accounts of the business accounting isn't established. Owing to item 2 of item 171 Tax Code the Russian Federations are subject to deductions the sums of the tax shown to the taxpayer at acquisition of the goods (works, services) in territory of the Russian Federation concerning the goods (works, services), the operations acquired for realization recognized as the taxation objects of the VAT. According to item 172 Tax Code the Russian Federation the tax deductions provided by clause 171 of the present Code, are produced on the basis of the invoices exposed by sellers at acquisition by taxpayers of the goods (works, services).

In Resolution of FAC, District of Moscow (case, dated 8/10/2010 № A40-156412/09-126-1263) is noticed that item 1 of item 172 Tax Code the Russian Federation specifies only in the right of the taxpayer to show to a deduction in full the sums of the tax to the value added, paid to suppliers. Thus, the Code doesn't contain a prohibition on a presentation to a deduction of such sums outside of the tax period in which there was such right. Thus, declared by the taxpayer to the VAT deduction during later periods, than during the period in which there was a right to the tax deduction, doesn't break rates of the legislation on taxes and tax collections and doesn't lead to indebtedness origin before the budget as VAT non-payment in later periods is compensated by an overpayment of the same tax in the previous tax periods, owing to deduction non-use.

In Resolution of FAC, District of Moscow (case, dated 8/10/2010 № A40-113664/09-107-857) isn'ted the below-mentioned. According to subitem 4 of item 4 of item 45 Tax Code the Russian Federation a unique obligatory requisite in the payment order without which the obligation on tax discharge isn't considered performed - an account number of Federal exchequer and the payee's bank name in case of which wrong instructions money funds haven't arrived in budgetary system of the Russian Federation. Regarding correctness of instructions OKATO or other requisites the given clause doesn't provide requirements.

In Resolution of FAC, District of Moscow (case, dated 5/10/2010 № A41-18513/08) is noticed that according to item 2 of item 264 Tax Code the Russian Federation the expenses suffered by a society in connection with acquisition of souvenirs and gifts, handed over by a holiday of New Year to representatives of other firms, concern expense accounts under condition of their documentary registration. The given expenses are connected with industrial activity.

In Resolution of FAC, District of Moscow (case, dated 30/09/2010 № A40-19787/10-111-132) is noticed that the current legislation doesn't provide availability of traveling sheets as the mandatory condition for inclusion in expenses on the profits tax of costs for purchasing of combustive-lubricating materials and for application of the tax deductions under the VAT.

In the Resolution of Presidium Supreme Court Russian Federation from 11/30/2010 № BAC-4350/10 it is noticed that the taxpayer in the absence of fault in fulfillment of a tax offense can't be held liable. According to subitem 3 of item 1 of item 111 Tax Code the Russian Federation the circumstance excluding fault of the person in fulfillment of a tax offense, admits accomplishment of written explanations by it about an order of calculation of the tax, given to it or an uncertain circle of persons financial, tax or other authorized body of the government (the authorized officer of this body) within its competence (the named circumstances are established in the presence of the corresponding document of this body, on sense and the maintenance concerning the tax periods in which the tax offense, irrespective of date of the edition of such document is made). If by a legal investigation the taxpayer has a corresponding written explanation (including Given to the uncertain circle of persons, published in Help Low Systems "the Konsultant +"), given by the Ministry of Finance of Russia according to item 1 of item 34.2 Tax Code Russian Federation inspection doesn't have bases for collecting of the penalty provided by item 1 of item 122 Tax Code Russian Federation.

Order of the Supreme Arbitration Court of 12.01.2011, № 1, taken in connection with changes to the APC (Federal Law of 27.07.2010, № 228-FZ) adopted interim procedure for filing documents in the arbitration courts in Russian Federation electronic form. Document govern the procedure for filing documents in the arbitration courts in electronic form by filling in forms posted on the official website of the arbitral tribunal on the Internet.

The Decree of the Presidium of the Russian Federation of 16.11.2010g. № 10914/09 noted that there can not be retroactive Plenum of the RF or decree of the Presidium of the Russian Federation, comprising the interpretation of the law, which worsen the situation by a person engaged or brought to administrative responsibility (including following a review of newly discovered evidence an enforceable legal act). As a result of this interpretation can not get worse (compared with the interpretation of previously settled in the jurisprudence) and the position of taxpayers, since by virtue of Articles 54 and 57 of the Constitution is inadmissible giving retroactive laws that worsen the position of taxpayers, including, as noted in ruling of the Constitutional Court of the Russian Federation of 08.10.1997 № 13-II, in the acts of an official or a different interpretation or in law enforcement.

The Decree of the Presidium of the Russian Federation of 16.11.2010g. № 10914/09 noted that there can not be retroactive Plenum of the RF or decree of the Presidium of the Russian Federation, comprising the interpretation of the law, which worsen the situation by a person engaged or brought to administrative responsibility (including following a review of newly discovered evidence an enforceable legal act). As a result of this interpretation can not get worse (compared with the interpretation of previously settled in the jurisprudence) and the position of taxpayers, since by virtue of Articles 54 and 57 of the Constitution is inadmissible giving retroactive laws that worsen the position of taxpayers, including, as noted in ruling of the Constitutional Court of the Russian Federation of 08.10.1997 № 13-II, in the acts of an official or a different interpretation or in law enforcement.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 03.09.2010, № A40-154850/09-142-1244) noted that the mere absence of the travel data sheets about the route of the vehicle can not be a sufficient reason to exclude the cost of the tax base if the evidence of the use of cars solely for personal purposes by the tax authority has been submitted. Expenses of the organization for the purchase of fuels and lubricants accounted for either as part of material costs in accordance with paragraphs. 5 para 1, Art. 254 of the Tax Code or as part of the expenses of the maintenance of official vehicles by virtue of paragraphs. 11 para 1 of Art. 264 Russian Federation, that is, depending on the purpose of transport used. To confirm the validity of the expenses incurred by society were represented logs, and confirmation of payments made - checks to pay for fuel and staff expense reports. According to the Guidelines for reimbursement of expenses be reimbursed only business expenses on the basis of original documents submitted an expense report after authorization by the staff. That is, to the advance reports are attached initially documents relating only to business expenses. In approving the expense report supervisor checks the validity of expenses. Approved an advance report goes public accountant who, in turn, checks the advance report and attached documents to ensure compliance with legislation and internal procedures (including those based on the data sheet on the track driven kilometers monitors compliance with internal rules of spending Fuels and lubricants).

Presidium Resolution of the Supreme Court RF, as of 16.11.2010 № BAC-4451/ has invalidated the decision of tax authority on value added accrual of property tax, penalty and fine, since court were legitimately guided by the fact, that the object of real estate did not meet characteristics of an asset while being unavailable for use at the moment of receipt of a permission for exploitation and prolonged renovation works in order to make the object useful for operation following receipt of the permission.

Resolution of the Federal Antimonopoly Service of the Moscow District (Case of 03.09.2010, № A40-136245/09-114-1045) is recognized as legitimate by which organizations hospitality and accounting for tax purposes the cost of acquisition of bouquets of fresh flowers and floral arrangements for official receptions. Court noted that, according to AP. 22 Section 1, Art. 264 Russian hospitality list is not closed. The only restriction is provided to account for such costs Article 264 of the Tax Code, is that they should not exceed 4% of the costs of an organization to pay for the reporting (tax) period.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 01.09.2010, № A40-52846/08-35-191) noted that the tax deductibility of the VAT (Article 171 of the Tax Code) are made on the basis of invoices, vendors exhibited at the acquisition by the taxpayer goods (works, services). The provisions of the legislation on taxes and duties of the Russian Federation do not contain provisions prohibiting the deduction for the presentation of such amounts outside of the tax period in the light of Art. 173 of the Tax Code and the legal position set out in Decree of the Presidium of the Russian Federation of 15.06.2010, the № 2217/10. In addition, in accordance with the provision of accounting policies for tax purposes the taxpayer stated that the results obtained from the supplier invoices are recorded in the register of received invoices as they become available.

The Decree of the Presidium of the Russian Federation of 20.07.2010 № 3018/10 was noted that the seven-day period provided for Section 2, Art. 23 of the Tax Code to be sent to the tax authority in writing reports on the discovery in a bank checking account can not be calculated before receipt of the organization or individual entrepreneur to open a bank reports the account.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 31.08.2010, № A40-122866/09-75-899) noted that the cost of the agent that he had committed in connection with the performance of obligations under the agency agreement, if such costs are to be included in the cost principal are not recognized as an expense agent. If the agent carries costs that are not reimbursed by the principal, the agent may include these expenses in the expenses taken into account in the taxation of its profits.

Resolution of FAC, District of Moscow (case, dated 01.09.2010 № A40-52846/08-35-191) with a reference to the Decision of Constitutional Court of the Russian Federation, of 02.10.2003 № 384-O, has noted that failure to fill in any parts of an invoice, unless it affects VAT payable, but rather related to additional information on transaction participants, and upon availability of evidence for existent VAT payments made to suppliers, may not be used as basis for refusal of tax deductions. The fact of a certain document found missing, should not serve as a basis for refusal of applying for a tax deduction as long as there is evidence of tax payment to the seller when making a purchase of goods (works, services) and its use in business purposes, including any other basis concerning the use of VAT reimbursement rights.

Resolution of FAC, District of Moscow (case signed 31.08.2010 № A40-51604/09-143-335) with a reference to article 169, 171, 172 and 252 TC RF, notes that if contract statutes do not have relevant provisions that allow to produce an act on the receipt of works finished (forms № KS-2) and a note for the costs of works finished (form № KS-3), verified through the Resolution of RSSC as of 11.11.1999 № 100, but instead have provisions for making other types of respective document, stipulated by the contract, then, pursuant to article 746, State Code of the Russian Federation, taxpayer has a right to reduce taxable profit and deduct VAT amounts.

Resolution of FAC, District of Moscow (case signed 31.08.2010 № A40-96192/09-112-702), brings to notice, that on the basis of the contents of sp. 2 p.1 article 164 TC RF, the list of services relevant to the article is not recognized as being comprehensive. The key criteria, allowing to refer controversial services to transactions liable to 0% tax rate, is their direct connection to manufacturing and sale of goods, exported pursuant to the Customs Approved use of goods.

Resolution of FAC, District of Moscow (case, signed 31.08.2010 № A40-128425/09-116-716) has recognised exclusion of advertisement costs from expenses part by Tax Dept. illegitimate if these costs are being used for third parties (official dealers) not being sister branches of structural subdivisions of the company but rather making income independently from their own commercial activity. Pursuant to sub-paragraph 28, p. 1 article 264 TC of the Russian Federation, other costs related to production and sales, include the costs of advertisement of produced (acquired) and (or) sold goods (works, services), taxpayer's activity, trademark and service trademark, as well as participation in fares and exhibitions. Pursuant to article 3, Federal law signed 13.03.2006 № 28-FL "On advertisement", information, delivered by any means, in any form and use of any type of resources, addressed to indefinite number of persons and focused on attraction of awareness towards the object of commercial, formation or support of interest to it and its market promotion. In this case, the consumers of advertisement were those individuals and legal entities who acquired full and authentic information regarding the product being sold, distributor and distributor's commercial activity, product sales and locations where the product is sold, locations of warranty services provided. This being said, the advertisement costs are economically rational and associated with commercial activity of the claimer, whose ultimate goal is acquisition of profit.

Resolution of FAC, District of Moscow (case dated 31.08.2010 № A40-156204/09-33-1239) has recognized arguments of Tax Department illegitimate with regards to the issue that an independently composed way bill does not contain requisites regarding vehicle itinerary of travel, which does not serve as evidence that the vehicle was used in business purposes, that such requisites are compulsory and reflect the content of economic transaction, and they are not acceptable due to the following reasons. Taxpayer is not regarded as a specialized auto transport company and does not provide transport services for third party companies. Forms of way bill, verified by the Resolution of RSSC of the Russian Federation, as of 28.11.1997 № 78, referred to by the Tax Department, are applied on compulsory basis by specialized auto transport organizations. Other organizations may develop their own form of way bill or another document that would confirm amounts spent on fuel. The case material concludes that the company order validates the form of way bill for a car. Pursuant to the order, vehicles should be used exclusively in business purposes. Monthly way bills, registered according to an independently developed form, contain all necessary requisites, stipulated by Federal law "On accounting", as well as data allowing to determine the volume of petrol that has been used: remainder of petrol at the time of departure, remainder of petrol at the time of entry, petrol refill and vehicle's mileage according to speedometer. The court has established that with regards to the issue being disputed, the tax authority has not provided sufficient evidence for respective motives of its decision to reduce the base of taxable income.

Resolution of FAC, District of Moscow, (case signed 30.08.2010 № A40-96192/09-112-702) makes a note, that pursuant to sp. 3 p. 7 article 272 TC RF the date of incurring non operational and other cost should be the date of making accounts according to statutes of concluded contracts or the date the taxpayer was provided with documents, serving as the basis to make calculations. In compliance with accounting policy for taxation, if there are any recalculations or reconciliations conducted in the following periods, then with regards to the corrected amounts, the time of costs recognition, in taxation purposes, should be a fixed date of documents provision in a society. Respectively, this should be the date of bilateral signing of an act. Therefore, assignation of costs in the taxation period, where the society received relative documents is lawful.

Resolution of FAC, District of Moscow (case dated 30.08.2010 № A40-96192/09-112-702), brings to notice, that pursuant to sp. 13 p 1 article 265 TC RF, non operational expenses include the costs in form of fines recognized by the debtor, penalties and (or other) sanctions for violation of contractual or loan liabilities. The specified norm does not associate the right of taxpayer to assign penalties and fines to non operational costs with a compulsory presence of a contractual statute to pay them in the event of violation of contract liabilities, but rather associates them with the fact of debtor's recognition of them. In present case, society's recognition of penalty sanctions has been confirmed by dual reconciliation act of accounts.

Resolution of FAC, District of Moscow, (case dated 20.08.2010 № 40-98565/09-76-675) brings to notice, that statutes of the article 169 TC RF do not contain requirements to provide a specific supplier's address. It may be either legal or actual address. In the event, if supplier specifies incorrect address in an invoice, it should not serve as a basis for refusal of tax deductions, since there is no such correlation stipulated by tax regulations. Besides, responsibility for correct fill-in of invoices lays on supplier of goods (works, services). Therefore, a buyer who received a valid invoice, in terms of requirements specified in p.5 article 169 TC RF, from supplier, has a right to declare a tax deduction for the amount specified in the invoice.

Resolution of SAC Presidium of the Russian Federation, as of 06.07.2010 № 2604/10 states, that the restrictions for the use of VAT deductions are stipulated on in t. 1 p. 7, article 171 TC of the Russian Federation which only mentions business trip costs and representative costs. Based on systematic interpretation of p. 7 article 171 TC RF and ch. 25 TC RF, there is an ongoing dispute with regards to establishing normative rules for VAT deduction only in relation to the specified costs. It is illegitimate to assign p. 7 article 171 TC of the Russian Federation with significance of a separate standard and extend the right of standardization to all types of costs which, pursuant to ch. 25, TC RF have to be calculated based on established standards.

Resolution of FAC, District of Moscow (case signed 30.07.2010 № A40-2254/09-98-9) with a reference to p. 2 article 9 of the Federal law, as of 21.11.1996 № 129-FL "On accounting", notes, that if certain content of services provided is identified in the agreement itself, it is not reasonable to transfer each type of economic transaction (name of specific transaction) from contract and if specifying abbreviated name with a reference to respective contract in the act of works finished (services provided), fully responds to the requirements of account and fiscal accounting. Resolution of FAC, District of Moscow (case signed 30.07.2010 № A40-2254/09-98-9), brings to notice, that tax legislation does not stipulate requirements for documents, that may be used to confirm economic legitimacy of costs, there is no particular list or form stipulated for such documents. As a result of this, taxpayers, for the purpose of confirming economic legitimacy of costs, may use any available organizational/management document that would verify the purpose of incurring specified costs.

Resolution of FAC, District of Moscow (case, of 30.07.2010 № A40-135800/09-126-1034) with a reference to p. 2 article 259 and p. 3 article 272 TC of the Russian Federation has recognized the decision of Tax Department on laying additional charges on income tax illegitimate for the following reason. The argument of inspection with regards to the calculation of depreciation amounts subject to be entered under costs, should be carried out based on the share of property lent out, while registration of depreciation amounts in the months of fiscal period, when the claimer did not have any profit is not legitimate, verified by courts and recognized groundless.

Resolution of FAC, District of Moscow (case, signed 29.01.2010 № A40-17688/10-140-162) brings to notice that admission of a three year term for return of an offset of tax, stipulated by article 78 TC RF, does not prevent taxpayer from addressing court with a lawsuit to return the overpaid amount from the budget according to the order of civil or arbitral judicial scrutiny, in which case, general rules for calculation of claim’s term apply — starting with the date when an individual found out or should have found out about violation of his/her right.

In Resolution FAC of the Moscow district (28/07/2010 № A40-119877/09-80-909) is noticed that representation by the tax bearer of the issued documents all properly provided by the law, with a view of reception of tax benefit is the basis for its reception if by tax department it is not proved that the data containing in these documents, are incomplete, doubtful, inconsistent. The fact of infringement by the counterpart of the tax bearer of the tax duties in itself isn't the proof of reception by the tax bearer of unreasonable tax benefit.

In Resolution FAC of the Moscow district (28/07/2010 № A40-70460/09-111-438) recognized as lawful solution to the tax authority of the inclusion of the non-operating expenses of interest on debt, because the tax authority legitimately calculated maximum amount of interest to be expensed under Art. 269 ​​of the Tax Code, and the taxpayer has no reason to attribute part of the cost of interest accrued in excess of amounts recognized as an expense for tax purposes. In violation of the requirements of paragraph 1 of Article 269 of the Tax Code in order for the accounting policy for tax purposes, society can not determine what debt should be considered comparable. In the absence of criteria defined in the accounting policy, the company decided that all credit agreements contain a comparable credit terms.

Resolution of FAC, District of Moscow (case signed 17.06.2010 № A40-96437/09-112-707) brings to notice, that pursuant to p.i. 1 p. 2 article 269 TC RF special rules of determination for the marginal amount of interest recorder for the purpose of taxation on liabilities, recognized as controlled liability, should be applied only if the amount of controlled liability on the last date of respective accounting period exceeds the difference between the amount of assets and the amount of taxpayer’s liabilities by more then 3 fold. As stipulated by court authorities in a just manner, the difference between assets and taxpayer’s liabilities should be defined in compliance with the Order on evaluation of the cost of net assets of joint stock companies, confirmed by the order of the Ministry of Finance of the Russian Federation and FCSM of the Russian Federation as of от 29.01.2003 № 10n/03-6/pz, including provisions of p. 2 article 269 TC RF, i.e. by way of deducting the taxpayer’s liability amounts from asset amount taken for calculation, and adding liability of taxes and levies to this result.

Resolution of FAC, District of Moscow (case signed 16.06.2010 № A40-125078/09-126-900) Notes that, pursuant to sp. 10 p. 1 article 264 TC of the Russian Federation, other production and sales related costs include rent (leasehold) payments for rented (accepted for a leasehold) property, as well as costs associated with acquisition of property, transferred into leasehold. The society used disputable accommodation in order to conduct real commercial (tourist oriented) activity, directed towards acquisition of profit, while there were not predicaments associated with documents confirming rent costs and building related services. In present legal situation, courts have used article 252, 264 TC of the Russian Federation and came to conclusion that costs associated with rent and services regarding the accommodation are documentary verified and have sufficient economic grounds. In case if Society violates Housing Code of the Russian Federation, as referred to by tax authorities, Society could be brought to justice pursuant to the current legislation.

Resolution of FAC, District of Moscow (case signed 11.06.2010 № A40-69883/09-4-494) notes that the list of other costs associated with production and sales, pursuant to sp. 49 p. 1 article 264 TC RF is not comprehensive. Thus the cost ok broken goods, also due expiration, irreplaceable packaging defects etc., legitimate relate to costs associated with production and sales and recorded during formation of a taxable base for the purpose of income tax calculation.

Resolution of FAC, District of Moscow, (case signed 21 19.05.2010 № A40-148892/09-127-1139) with reference to article 88 TC RF, states, that in cases when tax authority, while conducting a cameral tax check, has not detected errors and other contradictions in submitted tax declaration, it does not have any basis for termination of taxpayer’s explanations or accounting documents. Resolution of FAC, District of Moscow (case, signed 19.05.2010 № A40-148892/09-127-1139) notes, that chapter 26.2 TC RF does not assume taxpayer’s obligation to provide tax authorities with purchase and sales ledger along with tax declaration for uniform tax paid subject to use of simplified taxation.

Resolution of FAC, District of Moscow (case signed 13.05.2010 № A40-105228/09-80-719) has noted, that Tax Code of the Russian Federation does not contain regulations that allow tax authorities to evaluate costs incurred by taxpayers from standpoint of their practicality, rationality and effectiveness. According to the tenor of position stipulated by Constitutional Court of the Russian Federation, and explained in Resolution, as of 24.02.2004 № 3-P, judicial control is not obliged to check economic legitimacy of decisions, made by subjects of commercial activity, that have autonomy and wide discretion. Also, courts came out of legal position of Constitutional Court of the Russian Federations, explained in Definitions, as of 04.06.2007 № 320-О-П и № 366-O-P, pursuant to which, due to principle of freedom with regards to economic activity, taxpayer does it at his own risk and has a right to independently and unanimously evaluate its effectiveness and practicality. This being said, courts have justly declined claims of inspection on economic illegitimacy of costs incurred by society, as it contradicts legal regulation on taxes and levies.

Resolution of FAC, District of Moscow (case signed 13.05.2010 № A40-112158/09-93-975) has recognized it legitimate to bring an organization to justice for administrative violation, stipulated by article 15.1 Administrative Offences Code of the Russian Federation (violation of the order on operations with cash and order of conducting cash transactions …) due to the following circumstances. The Tax Department has stipulated, that over the auditable period, fiscal report related date does not correspond to the date, reflected in cashier’s register, cashier’s book. Thus, the data, reflected in the cashier’s book, as of 26.05.2009 contain amount of 10487 rubles as entered in the books, while data of fiscal memory of CRE reflect an amount of 10892 rubles, documentary unverified difference (no entry, or not adequate entry) came to 405 rubles. Thus, the fact of incomplete entry of cash into cash register – 405 rubles, leading to violation of statutes of the Law on use of CRE, Law № 129-FL 21.11.1996 “On accounting”, points 13,22,24 of the “Order on cashier operations in the Russian Federation”, verified by Letter of Central Bank of the Russian Federation, as of 04.10 1993, № 18, has been established and society has been justly brought to administrative justice.

Resolution of FAC Presidium of the Russian Federation, as of 15.07.2010 № 2833/10 with a reference to article 415 Civil Code of the Russian Federation has recognized it legitimate for non operational costs (sp. 2 p 2 article 265 TC of the Russian Federation) to include amounts of released debts (uncleared debt) in case if taxpayer took measures to recover liabilities, as well as making a peace agreement. In case of releasing a debt, taxpayer must provide evidence of these actions being directed to profit making, which can be proved by the fact the creditor, debtor liberated from liabilities laid upon him, has commercial interest in releasing debt, which may also be expresses in reaching a peace relative agreement, directed towards regulation of mutual requirements. Debt release is regarded as a gift only in the event, when court establishes the motive of a creditor to liberate the indebted party from liabilities of paying off debts in the form of a gift. Thus, listed above regulations of Tax Code of the Russian Federation, by way of applying accrual method, make it possible for any taxpayer- monetary liability creditor to reconcile the amount of debt, earlier recorded for the purpose of taxation, by way of including the amount of unsettled liabilities into non operational costs.

Resolution of SAC Presidium of the Russian Federation signed 29.06.2010 № 1411/10 with a reference to Order on cash register transactions in the Russian Federation (approved by decision of Board of directors, Central Bank of the Russian Federation, as of 22.09.1993 № 40) brings to notice, that current legislation does not require entrepreneurs to enter cash into cash register and follow the order on storing cash in hand, therefore, there is no legal basis to bring them to justice pursuant to article 15.1 Administrative Offences Code of the Russian Federation.

Resolution of SAC of the Russian Federation, signed 29.06.2010 № 808/10 on the issue, regarding the order on inclusion of product payment costs, for products acquired for the purpose of further resale, into costs account, stipulated for organizations, the following should be taken into consideration. Tax legislation does not require a buyer to make payment for goods acquired and sold in order to post them into costs account. Pursuant to sp. 24 p. 1 article 346. 16 TC RF, when trying to establish taxable base, taxpayers have to post costs of paying for goods acquired for the purpose of further resale. Point 2, article 346.17 of the Code defines the costs as charges that have been fully paid off. Along with that, sub-point 2, point 2 of the specified article stipulates, that costs of payment for goods, acquired for further resale, should be posted as part of costs in proportion to the sale of these goods. Thus, according to the article, if a product was acquired for the purpose of further sales, the cost of its acquisition should be recorded for the purpose of taxation, not in proportion to the actual payment of its cost, but in proportion to the resale of the goods. The term “product sales” is defined by point 1, article 39 of the Code. Thus, product sales are regarded as the transfer of ownership rights for goods on paid basis. Since, chapter 26.2 of the Code does not mention any standards that would define, for taxpayers using simplified taxation, the point of sale of goods (works, services), the costs of payment for products, acquired for the purpose of further resale should be posted as stipulated in sp. 2 p 2, article 346.17 the Code, — in proportion to the sales of specified goods.

Resolution of FAC, District of Moscow (case signed 11.05.2010 № A40-110111/09-80-789) notes the following. According to p. 3 article 269 TC RF, the costs should include interest on controlled debt, accrued according to p. 2 article 269 TC RF, however they should not exceed actually accrued interest. This being said, statutes, stipulated by p. 2 article 269 Tax Code of the Russian Federation, do not need to be used with regards to interest on borrowed assets, provided that unsettled debt is not controlled. Based on the context of p. 2, article 269 TC RF, controlled debt is regarded as an unsettled debt of a Russian organization in terms of a liability to a foreign organization, that owns, directly or indirectly, over 20 percent of charter (authorized) capital (funds) of the Russian organization, due to liability to a Russian organization, recognized according to legislation of the Russian Federation as an affiliated entity of specified foreign organization; based on liability, in relation to which present affiliated entity and (or) namely the foreign organization acts as guarantor or obliged to settle the debt liabilities in any other manner. Article 269, Tax Code of the Russian Federation does not stipulate any further requirements for the recognition of a debt as being controlled. Thus, p. 2 article 269, Tax Code of the Russian Federation stipulates particular requirements, according to which debt liability is regarded as being controlled debt to another foreign organization.

Resolution of FAC, District of Moscow (case signed 04.05.2010 № A41-3253/09) has recognized legitimacy of the Tax Department’s decision to bring to justice entities for incomplete payment of UTII, VAT, UST, PIT, including failure to submit tax declarations for VAT, UST, PIT in form of a penalty, since the entrepreneur, violation statutes of TC RF, unjustly used the taxation system in form of UTII, based on the fact, the space of rented retail area exceeded 150 square meters. Contract of leasehold for the real estate must contain information on location and space of buildings (objects), being rented out (sp. 2 p 1, article 432, p 3 article 607 Civil Code of the Russian Federation). Salesroom space should be established based on data specified in legal and inventory documents (sp. 22, article 346.27 TC RF). Thus, any legal documents (including leasehold agreements) may be used as basis to determine salesroom space.

FAC, District of Moscow, in Resolution, as of June 18 010 № KA-A40/5959-10 explained that in order to free taxpayer from respective consequence for a failure to pay tax, there must evidence of an advance payment made with regards to the same type of tax and the same budget. FAC specified that incomplete payment or non payment of certain tax amount as a result of understatement of taxable base, unjust accrual of taxes, or any other unjust actions, implies understatement or concealment of profits, concealment of taxable objects, failure to maintain profits account, costs account and taxable objects. The main qualifying sign of offence is understatement of taxable base, leading to no payment or incomplete payment of tax. Compulsory sign of an offence being committed is the point of actual consequences derived from committed actions, specified in disposition of present article, in form of incurrence of taxpayer’s liability to respective budget with regards to particular type of tax.

Therefore, in the event of during previous period, taxpayer made an advance payment towards certain tax, that either exceeds or equals the tax amount, understated in the following period and subject to be paid into same budget, provided this advance payment had not been earlier posted to other liabilities related to the same tax, there is no elements essential to the offence, based on the fact that understatement of tax amount has not led to incurrence of any liability to a budget. Therefore, in the event of the taxpayer making an advance payment towards certain tax, in the preceding period, that either exceeds or equals the tax amount, understated in the following period and subject to be paid into the same budget, provided this advance payment had not been posted earlier to other liabilities relating to the same tax, there are no elements essential to the offence, based on the fact that the understatement of a tax amount has not led to incurrence of any liability to a budget.

Resolution of FAC, District of Moscow, signed 18.06.2010 № KA-A41/6142-10-P with regards to case № A-41-2510/08, refusal of a taxpayer’s request to consider the decision of the Tax Department to make additional accrual of VAT and penalty on the tax invalid, based on the fact, the documents (invoices) addressed by the contractor — claimant were signed by an indefinite (incompatible) individual. The court came to a conclusion, that “society has not shown adequate awareness and caution when trying to choose a contractor and concluding the contract”.

By an ordinance of FAC of Moscow's district of 24.06.2010 № KA-A40/6505-10 Case No. A40-123281/09-99-925 the claim to consider tax body's decision to accrue extra tax, VAT, respective penalty amounts and impose tax sanctions was recognized legitimate, as the claimant provided all necessary primary documents to confirm expanses and VAT deduction, and there is no grounds to prove the receipt of unfounded tax benefits

By order of Presidium of SAC RF of 20.04.2010 № 18162/09, it's considered to be illegal for a tax body to deny application of VAT deductions for careless suppliers (see regulations of SAC RF of 12.10.2006 № 53), in the event when taxpayer confirms and tax body doesn't deny the records of active business transactions, attributed to reduction of income tax base.

Courts note that people made payments for acquired goods by way of money transfers into current accounts of specified suppliers. From then on, the goods were entered into books and used for production, which is confirmed by case materials, as well as primary documents and explanations of the society's workers. The expanses confirmed by respective documents, assigned to production in purposes of gaining profit from a specific business activity. Inspection did not find any circumstances that would compromise the society. Therefore, inaccuracy of invoices, signed by individuals other than those who deal with with organizational supplier papers as directors of these societies, can't be taken for a reason to recognize tax benefits unjustified without provision of other facts and circumstances. Interpretation of legal regulations contained in this order of SAC Presidium is compulsory for all and subject to examination of similar cases by arbitral courts.

Regulation of Supreme Arbitration Court of Russian Federation of 18.05.2010 № 17795/09 notes that Tax Code of Russian Federation does not give any special provisions for the format of documents confirming agent's (commissioner, mediator) service fees. According to article 1008 CC, RF during the execution of agent's contract, the agent should provide principal with reports within the terms and conditions specified in the contract. Unless specified otherwise by the agent's agreement, there should be additional documents attached to the agent's report that confirm expanses carried by the agent on behalf of the principal.